Triumph Assurance Company Limited V. M.m.t. Fadlallah & Sons Limited (1999)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

The dispute between the parties in this appeal started at the High Court of Justice Kano State sitting at Kano where by a writ of summons dated 3/3/93, the plaintiff claimed against the defendant the sum of N1,030,800.00 (One Million, Thirty Thousand and Eight Hundred Naira) being the cost/value of the plaintiff’s textiles goods lost during the riot in Kano on 15/10/1991 and which risk the defendant insured and covered by its policy No. 4k590 112 which is a contract of indemnity and which amount the defendant had failed, refused and neglected to settle inspite of repeated demands. After the exchange and settlement of pleadings, namely, statement of claim, statement of defence and a reply thereof between the parties, the case came before Nuhu Galadanci J. of the Kano High Court for hearing.

In the course of hearing, after the plaintiff had called evidence in proof of its claim and closed its case, the defendant without calling any witness filed a notice of preliminary objection dated 19/1/96 to the plaintiff’s case being heard by the trial court mainly on the ground that the trial court lacked jurisdiction to entertain the suit. The particulars of the grounds of the objection are:

“1. That the provisions of Decree 107 and 61 Suspension and Modification Decree 1993 confers exclusive jurisdiction on the Federal High Court.

2. Also Insurance Decree No 58 of 1991 confers exclusive jurisdiction on the Federal High Court.
3. That the action is time barred and therefore the court lacks jurisdiction.”

After hearing the learned counsel of the parties on the preliminary objection to the jurisdiction of his court, the learned trial Judge in his ruling delivered on 15/3/96 dismissed the defendant’s preliminary objection and held that his court which had an unlimited jurisdiction under Section 236(1) of the 1979 Constitution had jurisdiction to entertain the suit inspite of the provisions of Decrees 61 and 107 of 1993 which had enhanced the jurisdiction of the Federal High Court. Dissatisfied with that ruling of the trial court of 15/3/96, the defendant has now appealed to this Court. The defendant which is now the appellant had filed two grounds of appeal from which the following two issues were formulated in the appellant’s brief of argument:

“1. Whether the learned trial Judge was right to have (sic) held that Decree 107 of 1993 has amended Decree 61 of 1993 and therefore confers jurisdiction in insurance matters on the High Court on the ground that Decree 107 came two months after the promulgation of Decree No. 61 of 1993 and that the latter should be regarded as the law, for the fact that paragraph (n) dealing with insurance matters was omitted from Decree 107 of 1993.

2. Whether the learned trial Judge was right to have suo motu raised the issue of communication of notice of repudiation of the respondent’s claim to the respondents via Exhibit 7 and relying on the Exhibit 7 which was directed to the broker to the respondent and not to the respondent and upon this rejected the appellant’s submission.”

The plaintiff which is now the respondent in this appeal also filed its respondent’s brief of argument in compliance with the rules of this Court. However, the learned counsel of the respondent in the respondent’s brief rather than oppose or contest the appeal, simply adopted the issues for determination in the appellant’s brief of argument together with all the appellant’s arguments therein in support of the appeal and conceded that the appeal should be allowed and the case transferred to the Federal High Court for hearing and determination on the merit.

The argument of the appellant in support of Issue No. 1 in this appeal is that since the claim of the respondent before the lower court was an insurance claim, by virtue of the provisions of Decrees 60 of 1991, 61 and 107 of 1993, it is only the Federal High Court that has jurisdiction to entertain the respondent’s claim in the suit. That the omission of paragraph (n) in Decree No. 107 of 1993 which amended Section 230(1) of the 1979 Constitution had not amended or repealed the provisions of Decree No. 61 of 1993 which conferred exclusive jurisdiction in insurance matters on the Federal High Court. Learned counsel to the appellant further pointed out that it was the duty of the learned trial Judge to give effect to the clear provisions of Decree 60 of 1991 and Decree 61 of 1993 both of which had conferred exclusive jurisdiction in the present case on the Federal High Court.

It is well settled and our law reports are replete with decided cases by the Supreme Court and this Court which have established the principle that the word “jurisdiction” means the authority which a court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision. See Ndaeyo v. Ogunnaya (1977) 1 SC 11. The limits of this jurisdiction may be circumscribed or restricted by statute. See National Bank v. Shoyoye (1977) 5 SC 181.

It is also a fundamental principle of our law that it is the claim of the plaintiff which determines the jurisdiction of the court. See Adeyemi v. Opeyori (1976) 6 – 10 SC 31. This is because it is the plaintiff who invokes the constitutional right for a determination of his rights and accordingly the exercise of the judicial powers of the constitution vested in the courts. It follows therefore that in the determination of the issue of jurisdiction whether or not to entertain a claim, the applicable law is that which was in force at the time when the cause of action arose and not that which was in force when the issue of jurisdiction was raised. See Uwaifo v. Attorney General (1982) 7 SC 124. The appellant in the present case had relied specifically on the relevant provisions of Decree 60 of 1991 and Decrees 61 and 107 of 1993 as conferring exclusive jurisdiction on the Federal High Court in all matters connected with insurance to the exclusion of the State High Court. It is true that Section 7 of the Federal High Court Act Cap 134 of the Laws of the Federation 1990 as amended by Decree 60 of 1991 which reads:

“7(1) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to-

(a) …

(b) …

(c) insurance including third party claim and the National Provident Fund.

(p) …

(q) …

(r) …

(t) …

(u) …

had conferred exclusive jurisdiction on the Federal High Court to try causes and matters connected with insurance including third party claim and National Provident Fund. However this Decree 60 of 1991 was further amended by a subsequent Decree, the Federal High Court (Amendment) Decree No. 16 of 1992 by substituting for the existing Section 4 of that Decree the following new Section 4 which reads:

Citation and Commencement etc.

“4. This Decree may be cited as the Federal High Court (Amendment) Decree 1992 and shall come into force on such a date as the President Commander-In-Chief of the Armed Forces, after consultation with the Armed Forces Ruling Council, may by order published in the Gazette specify … (Italics supplied)

By this amendment, Decree 60 of 1991 which was then in force had ceased to be in force since 1st January, 1992 when the new Section 4 of that Decree came into force postponing the enforcement of the amendment to Section 7 of the Federal High Court Act to a future date to be specified by an order published in the Gazette. The effect of this amendment of course was to take away the exclusive jurisdiction of the Federal High Court in insurance matters hitherto conferred by Decree 60 of 1991. The learned counsel to the appellant had not referred this Court to any subsequent order reviving the enforcement of Decree 60 of 1991 in 1992 or any subsequent date.

However, with the coming into force of the Interim Government (Basic Constitutional Provisions) Decree No. 61 of 1993 in August 1993, the exclusive jurisdiction of the Federal High Court to try causes and matters connected with insurance was again restored by that Decree in the following terms upon which the appellant also relied in its brief of argument. The relevant provision in Section 156(1)(n) reads:

“156(1)Notwithstanding anything to the contrary contained in this Decree and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from:

(a) …

(b) …

(n) insurance (including third party claim)”

With the above provision in force in August 1993 upon which the appellant relied in support of its argument that the lower court had no jurisdiction to entertain the respondent’s insurance claim, the appellant appeared to have been on a firm ground. However the provisions of this Decree did not last long as its provisions lasted only during the life term of the Nigerian Interim Government that came into being with the provisions of that constitutional amendment Decree. This is because with the dissolution of the Interim Government in November 1993, the Interim Government (Basic Constitutional Provisions) Decree No. 61 of 1993 upon which the appellant is also heavily relying in support of its argument in this appeal, was also repealed by the Interim Government (Dissolution) Decree No. 109 of 1993 which states in Section 1(1) & (2) as follows:

“1 (1) The Interim Government, including the National Assembly is hereby dissolved.

(2) Accordingly, the Interim Government (Basic Constitutional Provisions) Decree 1993 is hereby repealed.”

Therefore with effect from 18/11/93 when this Decree No. 109 came into force, the Federal High Court had ceased to have exclusive jurisdiction in entertaining causes and matters connected with insurance. In other words the provisions of Decree 61 of 1993 upon which the appellant is relying in this appeal to say that the lower court being the High Court of Justice Kano State had no jurisdiction to entertain the respondent’s suit being an insurance matter, is no longer the law as the entire Decree No. 61 of 1993 had been repealed.

However, the issue of the jurisdiction of the Federal High Court was again instantly revisited by the new Military Government which came into being in Nigeria after the dissolution of the Interim Government. By Decree 107, Constitution (Suspension and Modification) Decree 1993 the provision of Section 230(1) of the 1979 Constitution relating to the jurisdiction of the Federal High Court under the Constitution was again amended in the following terms:

“Jurisdiction

5.230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from:

(a) the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;

(c) customs and excise duties and export duties, including any claim by or against the Department of Customs and Excise or any member or officer thereof, arising from the performance or purported performance of any duty imposed under any regulation relating to customs and excise duties;

(d) banking, banks, other financial institutions, including any action between one bank and other, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letter of credit, promissory note and other fiscal measures: provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank; (e) the operation of any Act or Decree relating to companies and allied matters and any other common law regulating the operation of companies;

(f) any Federal enactment relating to copyright, patents, designs, trade marks, and passing off industrial designs and merchandise marks, business names, and commercial industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;

(g) any admiralty jurisdiction. Including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by the enactment to be an international waterway, all Federal ports, including the constitution and powers of the ports authorities for Federal ports, and carriage by sea;

(h) diplomatic, consular and trade representation:

(i) citizenship, naturalisation and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passport and visas;

(j) bankruptcy and insolvency;

(k) aviation and safety of aircraft;

(l) arms, ammunition and explosives;

(m) drugs and poisons;

(n) mines and minerals (including oil fields, mining, geological surveys and natural gas);

(p) weights and measures;

(q) the administration or the management and control of the Federal Government or any of its agencies;

(r) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

(s) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;

Provided that nothing in the provisions of paragraphs (q), (r)and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action or damages, injunction or specific performance where the action is based on any enactment, law or equity.”

It is quite clear from the above comprehensive provisions of the amended Section 230(1) of the 1979 Constitution specifying the exclusive jurisdiction of the Federal High Court in Civil Causes and Matters outlined therein that No Exclusive Jurisdiction was conferred on the Federal High Court in causes and matters connected with insurance as was the case under the suspended or repealed provisions of Decree 60 of 1991 and Decree 61 of 1993. It is trite law that the limits of the jurisdiction of a court may be circumscribed or restricted by statute as was stated by the Supreme Court in National Bank v. Shoyoye (1979) 5 SC 181. Thus although the provisions of the repealed Decree 61 of 1993 which conferred exclusive jurisdiction in insurance matters on the Federal High Court had in no uncertain terms restricted the jurisdiction of the State High Courts in causes and matters connected with insurance, such restriction is clearly and plainly absent under Decree 107 of 1993. In other words having regard to the clear and unambiguous provisions of Section 230(1) of the 1979 Constitution as amended by the Constitution (Suspension & Modification) Decree 107 of 1993, causes and matters connected with insurance is no longer the exclusive preserve of the Federal High Court. The effect of this situation is of course obvious. Therefore, having regard to the present state of the law, the State High Courts now have jurisdiction to entertain and determine all causes and matters connected with insurance pending the promulgation of any Act to the contrary by the National Assembly. In this respect, the learned trial Judge was quite right in his ruling of 15/3/96 now on appeal that the Kano State High Court had jurisdiction to entertain the plaintiff/respondent’s claim.

It must be observed however that although the respondent’s counsel had conceded that this appeal be allowed and the matter transferred to the Federal High Court for hearing on the merit, that plea is not now capable of being implemented because under Section 251(1) of the present 1999 Constitution, the Federal High Court still has no jurisdiction to entertain causes and matters connected with insurance as in the claim in the instant case.

The second issue for determination is whether the learned trial Judge was right to have suo motu raised the issue of communication of notice of repudiation of the respondent’s claim to the respondent in Exhibit 7 when the same issue was not raised by the respondent. It was argued by the appellant that the trial court had no right to set up a new case for the respondent. That having raised the new issue without affording the parties the right to address the court on the issue, the decision of the court on the issue should not stand. Although the respondent in its brief had also conceded the appeal on this issue, in the absence of the relevant proceedings containing the arguments of counsel on both sides on the preliminary objection raised by the appellant forming part of the record of this appeal, it is impossible to determine if the issue of communication of notice of repudiation of the respondent’s claim to it was raised suo motu by the trial court without affording the parties the opportunity of being heard on the issue. As the record of appeal contains only the Notice or Preliminary Objection and the Ruling of the lower court thereon, it is not possible to determine from the Ruling alone that the parties were not heard on the issue of communication of the notice of repudiation of the respondent’s claim. In any case the question of whether or not the claims of the respondent had been effectively repudiated by the appellant will form part of the defence of the appellant to the respondent’s claim which shall be for determination at the end of the hearing of the case on the merit Furthermore, it is my view that it will not be appropriate at this stage to determine Issue No.2 in this appeal having regard to the outcome of Issue No. 1 on the jurisdiction of the lower court to entertain the respondent’s claim which now has to go back to the lower court for final determination.

In the result, having held that the lower court has jurisdiction to hear and determine the dispute between the parties in this appeal, the appeal itself must fail. Accordingly the appeal is hereby dismissed. The ruling of Galadanci J. that the Kano State High Court has jurisdiction to hear the action filed by the respondent before it is hereby affirmed. The case is remitted to the same trial court for Galadanci J, to complete the proceedings and determine the respective rights of the parties on the merit.

As the respondent did not contest the appeal, I do not regard it appropriate to make any order as to costs.

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Other Citations: (1999)LCN/0629(CA)